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been resold.

Damages. the purchaser is at liberty, if he choose, to resell Where it has the chattel (y), he may recover the difference between the price given by him and the price received on such resale (2), and also the expenses of keep (if any, as in the sale of a horse), for a reasonable time, for the purpose of reselling to the best advantage (a). Whether the time of keeping is reasonable or not, is a question for the jury (b); it seems, however, that in every case the purchaser will be entitled to some allowance for the keep (c).

Waiver.

Delay in making the objection will not prejudice the plaintiff's right to recover damages for the breach of warranty (d); nor will the vendor be permitted to give evidence of a custom of trade, that the purchaser is precluded from objecting to

tween the two: for it may be, that, had the vendor duly performed his stipulated agreement, the value of the chattel to the vendee would have been greater than the price he undertook to give.

(y) See next page, note (1).

(z) M'Kenzie v. Hancock, Ry. & Moo. 436. See 1 Taunt. 568. (a) Ellis v. Chinnock, 7 C. & P. 169. Ry. & M. 436; 4 Nev. & Man. 195. King v. Price, 2 Chit. Rep. 416; Selw. N. P. 657, (8th Ed.).

(b) Chesterman v. Lamb, 2 Ad. & Ell. 129; S. C. 4 Nev. & Man. 195.

(c) See per Denman, C. J., 2 Ad. & Ell. 132. But Mansfield, C. J. said, that the plaintiff could not recover for the keep, unless he had previously tendered the horse; 1 Taunt. 567; 2 Campb. 82.

(d) Freeman v. Baker, 5 C. & P. 475, 483; 2 Nev. & Man.

the goods unless he has notified his disaffirmance Damages. immediately (e); or a custom that he is bound to accept an allowance for the inferior quality (ƒ). Nor is the purchaser bound to offer to return the chattel (g). For, although, after acceptance and acquiescence on the part of the purchaser, a breach of the warranty does not work such a rescission of the contract as to enable him to sue for money had and received (h), or to set up the breach in bar of an action for the price (i), yet, keeping the chattel is not such a waiver of the breach as to discharge the vendor's liability on his express undertaking: because "no length of time elapsed after the sale can alter the nature of a contract originally false" (k). So, the vendee is not precluded from recovering, by a resale of the chattel (1), nor by keeping it after discovering the defect, and using means to cure such defect, so as to put the

(e) Yeats v. Pim, 2 Marsh. 141.

(f) Hibbert v. Shee, 1 Campb. 113.

(g) Fielder v. Starkin, 1 H. Bl. 17; Buchanan v. Parnshaw, 2 T. R. 745. See 3 Esp. 84; Anon., cited by Willes, J., 1 H. Bl. 20.

(h) Supra, p. 328, note (1).

(i) Supra, p. 268.

(k) Per Lord Loughborough, C. J., 1 H. Bl. 19. And if the vendor has filed a bill for the price, and the purchaser has paid the money without disputing the claim, this is not such an acquiescence as to bar his action; Jeudwine v. Slade, 2 Esp. 573.

(1) Selw. N. P. 657, (8th Ed.); 2 Ad. & Ell. 132. See 9 B. & C. 265; 4 Man. & Ry. 208.

Damages. chattel in a different plight from that in which it was at the time of the sale (m).

But, if the express agreement was, that the vendor should take back the chattel if on trial it should be found not to correspond with the warranty, the purchaser cannot recover damages for the breach of warranty if he has kept it for a longer period than is necessary for trial (n). And, even in the absence of such an agreement, the not giving notice will afford a strong presumption against the buyer (not, that he has waived the breach, but) that the chattel at the time of the sale had not the defect complained of, and will make the proof on his part more difficult (o): thus, where the vendor warranted certain saffron to be of merchantable quality, and the vendee kept it for six months and sold part, it was held, in an action for the breach, to be properly left to the jury to infer that the article was such as the plaintiff intended to purchase (p).

(m) Patteshall v. Tranter, 4 Nev. & Man. 649.

(n) Adams v. Richards, 2 H. Bl. 573. The stipulation, that a trial shall be allowed, will be intended to mean a reasonable trial; id. 574.

(0) Per Lord Loughborough, C. J., 1 H. Bl. 19. See 1 Ad. & Ell. 42. In 2 Marsh. 143, Gibbs, C. J., said, "that the plaintiff did not make his complaint at first, might lead to a conclusion that the damage did not exist at the time of the sale." (p) Prosser v. Hooper, 1 B. Moore, 106. low price had been given, id.

Especially where a

PART III.

RIGHTS AND LIABILITIES OF VENDOR IN RESPECT OF
THIRD PARTIES.

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by one

partner binds co

A purchase by one partner binds the firm (a); even Purchase if the purpose to which the goods are intended to be applied, be fraudulent against the co-partners, partner. provided that the seller be not a party to the fraud (b). The general rule is, that a partner may bind his co-partners in all transactions relating to

(a) Hyat v. Hare, Comb. 383; Coll. Partn. 215. So, in the drawing, accepting, or indorsing of bills; Swann v. Steele, 7 East, 210; Baker v. Charlton, Peake, 80; Wintle v. Crowther, 1 Cr. & Jer. 316; Carolina Bank v. Case, 8 B. & C. 427; unless there be covin and collusion on the part of the plaintiff, Sherriff v. Wilks, 1 East, 48.

(b) Bond v. Gibson, 1 Camph. 185; Rapp v. Latham, 2 B. & A.

Extent of the partnership (c); or in the words of Lord

liability.

66

Kenyon, one partner may pledge the credit of the firm to any extent." And no private understanding, or express arrangement, among the partners themselves, with the view of limiting their liability, can avail them in respect of third parties without notice (d).

I. HOW PARTNERSHIP LIABILITY MAY BE CREATED.

Persons may become liable as partners, as well where the legal relation of partnership actually subsists inter se, as where the relation is implied from the fact that they have held themselves out to the world as partners (e). And the liability may be founded either on the ground of a general trading partnership, or the course of dealing in a particular transaction. Therefore partnership liability may be considered under two heads, viz. partnership in name and partnership in interest. Under the former are included,—the general case of nominal partners of a firm, whether really interested or not, and the particular case of parties

(c) See 1 East, 48; 2 B. & A. 679. Anon. v. Layfield, 1 Salk. 292.

(d) Waugh v. Carver, 2 H. Bl. 235; Sandilands v. Marsh, 2 B. & A. 679, per Lord Tenterden, C. J.; Rex v. Dodd, 9 East, 527, per Lord Ellenborough, C. J.; Gleadon v. Tinkler, Holt, N. P. C. 586; Biggs v. Fellows, Dan. & Lloyd, Merc. Ca. 121.

(e) See Dickenson v. Valpy, 10 B. & C. 140; S. C. 5 M. & Ry. 126; Hoare v. Dawes, 1 Dougl. 371; Braithwaite v. Skofield, 9 B. & C. 401; Coll. Partn. p. 3.

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